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Class Action Countermeasures Discussions of the Strategic Considerations Involved In Class Action Defense

Negotiation Studies – Three Quick Ideas

Posted in Settlement

 So, you may have noticed that posting has been slightly sporadic lately. There have been two big reasons for this: first, my daughter was born at the end of June, and blogging must sometimes give way to taking care of her; second, I have just delivered the manuscript for Betting the Company: Complex Negotiation Strategies for Law & Business (co-written with my old friend Andrew DeGuire) to my publisher. It should be out sometime in 2013, but the crimp it put in my schedule occurred now.

So, to try to get back to my old two-a-week schedule, let me offer up three pieces of negotiating insight for class action settlements, derived from three older articles from the negotiating literature.

1. When we think people are acting spitefully, they may just be concerned with their relative rank. At least, that’s the conclusion reached in Tatsuyoshi Saijo & Hideki Nakumara, The "Spite" Dilemma in Voluntary Contribution Mechanism Experiments, 39 J. Conflict Resolution 535 (1995) after the authors conducted a series of experiments on voluntary contributions. So it may behoove class action lawyers to look for ways to convince the other side that they’re "winning" relative to their opponent.

2. Want to know if someone is lying in negotiations? Read Karl Aquino & Thomas E. Becker, Lying in Negotiations: How Individual & Situational Factors Influence the Use of Neutralization Strategies, 26 J. Org. Behavior 661 (2005), which offers five rhetorical strategies used by liars to make themselves feel better. Warning: these sound a lot like tactics used by both sides in a lot of heated litigation.

3. Some people like to split the difference when negotiating a compromise. That includes judges. But all "trimmers" to use Professor Cass Sunstein’s term, are not alike. It may be worth your knowing whether your judge is interested in building consensus or just getting a tough case off her docket. Cass R. Sunstein, Trimming, 122 Harv. L. Rev. 1049 (2009).